Do Police Have to Read Me Miranda Rights in Wisconsin? (2025)

The Miranda rights include:

1. The right to remain silent
2. The right to have an attorney present when questioned by police
3. The right to have an attorney appointed to represent you in a criminal case if you cannot afford one

While most of us are aware of these rights thanks to shows like these, you might have been given the wrong impression if you came away assuming police are always required to give you these rights upon arrest. The truth is, police are only required to read you these rights under certain conditions. 

Before I get into that, let’s quickly go over what Miranda warnings are and where they came from.

What are the Miranda rights? 

Back in 1966, the U.S. Supreme Court held that if you’re held under police custody, you must be advised of your constitutional rights to ensure you understand your right to be free from self-incrimination under the Fifth Amendment. These rights came to be known as your “Miranda rights.” One of the key components here is custody.

There are two primary requirements of Miranda:

1. You must be “in custody.”
2. You must be subject to interrogation. 

However, it’s important to note that there are certain exceptions that can make a violation of Miranda by police inconsequential. Let’s go through both of these requirements and discuss the exceptions.

How do I know if I’m “In Custody?” 

You’re in custody for the purposes of Miranda if:

• You’ve been formally arrested, OR your freedom of movement is being restrained just as much as it would be if you were being formally arrested.

If that has you confused, here’s an objective test used to figure out if someone was actually in custody when they were interrogated by police:

Would a reasonable person in the suspect’s position consider himself or herself to be in custody?

The Fifth Amendment provides that no one should be compelled to be a witness against themselves in a criminal case. This has been interpreted to mean that individuals have a right to be free from providing self-incriminating testimony while in custody.

This right against self-incrimination is the foundation of the other Miranda rights (the right to remain silent and the right to an attorney). 

A Few Wisconsin-Specific Custody Examples

How do I know if I’m being interrogated? 

The second requirement of Miranda is that you be subject to interrogation.

Interrogation, in this case, means questioning by the police that would elicit incriminating statements. In other words, questioning is likely to result in someone incriminating himself or herself.

Incriminating oneself means making statements that tend to show you were involved in criminal activity. Many times, individuals will make statements to the police in situations where they are either not in custody or they are not being interrogated. Without these two factors being met, our rights as we know them are not required to be read to us. 

Key Exceptions (When Statements May Still Come In)

• Public-Safety Exception. Officers can ask urgent “Where’s the gun?”-type questions before warnings. (Quarles doctrine, applied in WI).

   

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  Booking-Question Exception. Purely biographical questions during booking (name, DOB) don’t require warnings. State v. Bryant, 2001 WI App41
  
• Volunteered/Blurted Statements. If you speak without prompting, Miranda doesn’t protect you.
• Impeachment Use. Even if Miranda is violated, your statements may be used to impeach you if you testify inconsistently at trial.
• “Elstad” Clean-Up. A later, warned statement can cure an earlier unwarned one if the later waiver is voluntary and informed.

An Example of Miranda in Action 

Let’s imagine the police came to your house wanting to speak with you about a potential crime they believe you might be involved in. You invite them into your home and end up making incriminating statements after being questioned. Miranda, in all likelihood, will not apply.

Although it is possible, it is extremely unlikely that an individual could be in custody when they invite law enforcement into their home.

However, if you are formally arrested in your home and police continue to question you, Miranda is required.

Be aware that police are very familiar with the requirements for Miranda and will often question people in situations where they do not need to read them their Miranda rights because they know the person is not in custody.

When considering your own circumstances, be mindful of these two critical requirements for Miranda or you may unwittingly put yourself in a position where you could make statements to the police which are then used against you. 

A Practical “Know-Your-Rights” Cheat Sheet

Here are some quick action steps if police want to question you:

• Politely ask: “Am I free to leave?”—this clarifies custody.

• If told you’re free to go, leave or stay silent. Your words are fair game.

• If you’re detained, state: “I’m invoking my right to remain silent and want a lawyer.”

• Do not volunteer small talk—Wisconsin courts treat volunteered remarks as admissible.

• Remember: Being read Miranda rights doesn’t create rights; it simply reminds you of them. They exist whether recited or not.

If you have questions regarding your case, or believe law enforcement did not read you your Miranda rights when it was required of them to do so, it’s crucially important to contact an experienced criminal defense attorney in Madison, Wisconsin for a free consultation.

Click here to fill out a free consultation form to get in contact with Attorney Patrick Stangl today.